AALS Conference 2018 – San DiegoAALS Open Source Program: Visual and Popular Culture Imagery in Legal Education
The Sharpest Tool in the Toolbox: Visual Legal Rhetoric
PROFESSOR MICHAEL D. MURRAYUNIVERSITY OF MASSACHUSETTS SCHOOL OF LAWJANUARY 4, 2018
Journal of Legal Education symposium Teaching the use of visual rhetorical
techniques to effectively communicate – i.e., construct knowledge and understanding in the audience
And to persuade – i.e., advocate adherence to a particular “reality” or narrative of the case, the facts, and the law
Effectiveness —and— Ethical & Professional Usage
Invention: Substantive Uses
Actual Subject Matter
• Exhibit• Depiction or Diagram
Demonstration• Re-creation, reenactment• Arrangement of info, data
Narrative• Communicate the story;
framing; redirection• Appeal to values, emotions
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The baseline rhetorical situation
• COGNITIVE STUDIES• Visual Learning – can process
information quickly; make connections; retain more
• BRAIN SCIENCE• Emotional Brain (mammalian, limbic
system) is much quicker than cognitive brain; Reptile Brain is fastest of all
• Studies show we often make a quick emotional decision, then go back and sustain or justify it with a logical cognitive decision*
• *Hard to overturn that emotional take
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Lessons for Students (Future Lawyers)The nature of the power and why it is so
sharp; e.g., the bias (or heuristic) of naïve realismor cognitive illiberalism
The complexity of the power and why it cuts at least two ways; e.g., audience perception and cognition, and values
The potential for intentional abuse –e.g., speed and power, precognitive perception
The need for vigilance against inadvertent misuse—e.g., works are perceived as transparent, not authored, not mediated
The Decision to Use a Visual*Is the idea of the visual effective at enhancing the reader’s comprehension of the analysis?
Does the visual improve the document’s overall design? Does the visual meet professionalism norms?In or out? The verdict.
*Steve Johansen & Ruth Anne Robbins, Art-iculating the Analysis
Putting the lessons into practiceMise en scène and the manipulation
of images, video—seeking the “perfect moment” in a visual
Color vs. not Color —seeking the appropriate use of color vs. grayscale/black & white
Critical Eye & Focus groups —seeking the reaction of a wider and more diverse test audience
Mise en scèneStaging, setting a sceneEditing and cropping—What to
leave in and what to leave outCompositionDetermining the center of
focus, and how to feature it in the scene—lighting, zoom, cropping, sharpening/softening, contrast
Mise en scène: Looking for or creating images that tell the best story
The perfect moment: Looking for or creating images that best tell the story
The decisive moment of an scene that communicates the narrative
Manipulation of video:Sandra Bland v. Texas (2015)
Color: When is necessary? When is it inadvisable?
Satava v. Lowry
Satava
Lowry
Color does not change the facts, but it clarifies the perception
Rogers v. Koons
When is color inadvisable?
Warning: the next slide contains extremely graphic images of an alarming and disturbing nature
(like many of our cases)
Color images—too gruesome for illustration?
The critical eye – what do you show the audience, and how do you show it?
Pornography under the Miller v. Calif. test
Child pornography under Ferber, Osborne, Ashcroft v. Free Speech Coalition
Graphic images in a personal injury case Graphic images in a public terrorism case –
e.g. the Boston Marathon Bombing
Graphic images in a war crimes or genocide case?
The critical eyeExamine your images critically, with an
eye to emotion, emotion, emotion Will it convey the right message and the right
emotional reception? Will it trigger the wrong kind of reaction? Will it be overwhelming, disgusting, anger-
provoking? -- What you present might turn the audience
against you (your ethos) because of the images you selected or created
Sharpness – the emotions –and Focus Groups
Testing what will be effectiveBroaden the test – don’t rely on your own
perception or on the 1-2 other lawyers working on the case
Do as marketing people do – gather a focus group
At least show it to a broader, more diverse audience—not just other lawyers
Don’t explain what you were trying to do; don’t set it up. Get the instantaneous reaction.
© 2018 Michael D. [email protected]/author=349387
For further information, seeMichael D. Murray, The Sharpest Tool in the Toolbox: Visual Rhetoric and Narrativity, ___ J. Legal Educ. ___ (2017)
Michael D. Murray, The Ethics of Visual Legal Rhetoric, 13 LEGAL COMM. & RHETORIC: JALWD 107 (2016), available at https://ssrn.com/abstract=2655707
Michael D. Murray, Visual Rhetoric: Topics of Invention and Arrangement and Tropes of Style, 21 LEG. WRITING185 (2016) http://ssrn.com/abstract=2491911